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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10th DAY OF APRIL, 2015

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

EXECUTION FIRST APPEAL NO.2/2012

BETWEEN: SRI.K.L.KHURANA AGED ABOUT 70 YEARS R/AT NO.189, CANARA BANK COLONY NEAR NAGARABHAVI ROAD BENGALURU-560 072 REP. BY GPA HOLDER MR. DHIRAJ KHURANA S/O K.L. KHURANA R/AT NO.189, CANARA BANK COLONY NEAR NAGARABHAVI ROAD BENGALURU-560 072. … APPELLANT (BY SRI.M.ASWATHANARAYANA REDDY, ADVOCATE)

AND: 1. M/S SURESH BROTHERS NO.2, D.K. LANE BVK IYENGAR ROAD CROSS BENGALURU-560 053 A REGISTERED FIRM REPRESENTED BY ITS PARTNER MRS. VEENA AGARWAL. 2. SURESH CHAND AGAWAL AGED ABOUT 75 YEARS S/O LEELDHAR HISSALA

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NO.15-C, 1ST FLOOR, IB MAIN, HSR LAYOUT SECTOR-6 BENGALURU-34. … RESPONDENTS

(BY SRI. CHANDAN RAO, FOR SRI K. SURYANARAYANA RAO, ADVOCATES FOR R-1; SRI. GANAPATHI HEGDE, ADVOCATE FOR R-2) THIS APPEAL IS FILED UNDER CHAPTER-VI (1)(b) OF HIGH COURT OF KARNATAKA RULES, 1959 AGAINST THE ORDER DATED 16.06.2012 PASSED IN EX.NO.220/1999 ON THE FILE OF THE V-ADDL. CITY CIVIL JUDGE, BENGALURU DISMISSING THE APPLICATION UNDER SECTION 47 R/W SECTION 151 OF CPC. THIS APPEAL BEING HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Judgment Debtor being aggrieved by order dated

16.06.2012 passed in Execution No.220/1999 rejecting

his application filed under Section 47 read with Section

151 of CPC has preferred this First Appeal under

Chapter VI – I(1)(b) of Karnataka High Court Rules,

1959.

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2. Parties are referred to as per their rank before

Executing Court.

3. Facts in brief which has led to filing of this appeal

are as under:

Decree holder filed a suit O.S.No.5422/1993

against the judgment debtor for recovery of

Rs.1,70,000/- with interest @ 24% p.a. Though written

statement was filed matter was not contested and suit

came to be decreed on 17.07.1998 for a sum of

Rs.3,17,242/- together with costs and interest @ 24%

p.a. on 2,87,531.20 from the date of suit till realization.

Judgment Debtor filed a Miscellaneous Petition in

Misc.No.1115/2003 to set aside the said judgment and

decree which came to be dismissed on 12.01.2009.

Same has reached finality.

4. Decree holder in order to enjoy the fruits of the

decree filed execution petition in E.P.No.220/1999 on

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10.02.1999. The immovable property belonging to the

judgment debtor was brought for sale in the said

execution proceedings. On sale proclamation being

issued, spot sale and court sale came to be conducted

and sale was confirmed in favour of the auction

purchaser namely second respondent in this appeal and

Sale certificate also came to be issued in his favour.

5. Judgment Debtor after 10 years from issuance of

sale certificate in favour of the auction purchaser filed

an application under Section 47 read with Section 151

of CPC to set aside the sale of the property described in

the application morefully, contending interalia:

(i) The auction proceedings

conducted is contrary to the

provisions of Code of Civil

Procedure;

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(ii) Auction Purchaser is none other

than husband of the decree

holder;

(iii) Bank Manager from whom the

Judgment Debtor had obtained

credit facility is friend of auction

purchaser and the decree holder

and as such he has supplied the

copies of the title deeds;

(iv) Sale notice was not served on

judgment debtor;

(v) Judgment Debtor does not have

saleable interest in the property

sold and as such, auction sale is

bad in law;

(vi) Decree holder and auction

purchaser have played fraud on

the Court and the Judgment

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Debtor in selling the property in

question;

(vii) Auction sale suffers from material

irregularity and legal infirmity

and same is in contravention of

Rule 138 of the Karnataka Civil

Rules of Practice;

(viii) Executing Court has not

considered whether property in

question is having a legal title for

being sold in public auction.

(ix) Property has been sold for very

low price by virtue of collusion

between decree holder and

auction purchaser;

(x) Decree holder has not made

attempts to secure fair price for

the property;

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(xi) Auction conducted is contrary to

Order 21 Rule 66 CPC.

Hence, judgment debtor sought for auction sale

being set aside.

6. Decree holder as well as auction purchaser both

have filed statement of objections to the said application

and have denied the averments made in the application.

Both parties tendered evidence namely Judgment

Debtor examined his son Sri.Dhiraj Khurana as

JDRW-1 and got marked 53 documents as Exhibits P-1

to P-53. Auction purchaser got himself examined as

DHRW-1 and got marked 7 documents as Exhibits D-1

to D-7. Executing Court after considering the pleadings

and evidence on record formulated following points for

its determination:

“1. Whether Judgment Debtor has

made out substantial and reasonable ground to set aside the sale in respect

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of the application schedule property and also to set aside the sale certificate dated 23.10.2002 which was presented before the Sub Registrar on 11.11.2002

for registration by allowing this application filed under Section 47 of Code of Civil Procedure? 2. What order?”

7. After evaluating the evidence available on record

and after considering the rival contentions raised,

Executing Court has dismissed the application on

following grounds:

(a) When Judgment Debtor is seeking for setting aside sale on the ground of fraud or

irregularity, application has to be filed under Order 21 Rule 90 as otherwise sale cannot be set aside; (b) Application under Order 21 Rule 90 CPC should have been filed within 60 days from the date of confirmation of sale and in the instant case neither such application was filed nor the application filed under Section 47 of CPC was within 60 days from the date of confirmation of sale.

(c) Judgment Debtor has not deposited the auction amount or the decreetal amount

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while filing the application in question as required under Order 21 Rule 89 of CPC;

(d) The application in question is barred

by limitation namely, it is filed beyond time prescribed under Article 127 of the Limitation Act, 1963.

(e) Judgment Debtor did not enter the witness box and JDRW-1 does not have any knowledge regarding defence set up by the Judgment Debtor.

(f) Evidence on record does not disclose fraud or irregularity in the conduct of auction sale or issue of sale certificate.

8. On abovestated grounds amongst others as

elaborately discussed in its order dated 16.06.2012

application filed by the judgment debtor came to be

dismissed by Executing Court

9. I have heard the arguments of

Sri.M.Aswathnarayan Reddy, learned counsel appearing

for appellant and Sri.Chandan S. Rao, learned counsel

appearing on behalf of Sri.K.Suryanarayana Rao for

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respondent No.1 and Sri.Ganapathi Hedge, learned

counsel appearing for respondent No.2. Records

secured from the Executing Court has been perused.

10. Sri.Aswathnarayan Reddy, learned counsel

appearing for Judgment Debtor reiterating the

contentions raised in the application filed under Section

47 of CPC before the Executing Court and grounds

urged in the appeal memorandum would elaborate his

submission by contending that it was mandatory on the

part of the Executing Court to ensure that sale notice

was served on the Judgment Debtor and same having

not been served came to be conveniently overlooked by

the Executing Court and as such all proceedings before

the Executing Court is bad in law. He would submit

that advancement of the case before the Executing

Court from 19.04.2002 to 26.02.2002 is without notice

to judgment debtor and therefore auction conducted is

illegal and so also the confirmation of sale. He would

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draw the attention of the court to the order sheet of the

Executing Court to contend that as on 25.02.2002 sale

notice issued had not been returned and yet without

notice to Judgment Debtor the hearing date of the

execution proceedings has been advanced and auction

conducted at the spot and thereby judgment debtor had

been deprived of opportunity to put forth his objection

to auction sale or to deposit the decreetal amount before

auction sale, and as such, sale proceedings are vitiated.

He would also contend that application under Section

47 of CPC is to be filed within three years from the date

of judgment debtor coming to know about the court

auction sale and said application had been filed within

three years from date of knowledge and even otherwise

no limitation is prescribed for filing an application

under Section 47 of CPC and as such application could

not have been rejected on the ground of limitation. He

would contend that Executing Court had not considered

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that Judgment Debtor is in possession of the property

in question and decree holder or auction purchaser had

not obtained possession of the property through the

process of Court and as such, sale of property is liable

to be set aside. In support of his submissions he has

relied upon the following Judgments:

(1) AIR 1971 SC 2083 –

The Reliable Water Supply Service of India (P) Ltd., Vs The Union of India

and others (2) AIR 1981 DELHI 291 –

Jiwan Dass Rawal Vs Narain Dass and others

(3) AIR 2005 Madhya Pradesh 40 – Om Prakash and others Vs Dwarka Prasad and anr

(4) AIR 2008 SC 2061 –

M/s.Mahakal Automobiles and anr Vs Kishan Swaroop Sharma

(5) 1988 ILR Karnataka 2237 –

M/s.Hotel Nataraja Vs Karnataka State Financial Corporation

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(6) AIR 2004 Andhra Pradesh 465 – A.C.Nagaraju Vs N.Sreenivasa Reddy

(7) AIR 2003 Calcutta 218 –

Smt.Arati Daw Vs Pradip Roy Chowdhury and others

11. Per contra, Sri.Chandan Rao, learned counsel

appearing for respondent No.1 by reiterating objections

filed by the Judgment Debtor before the Executing

Court would contend that when specific provision is

available under Code of Civil Procedure to seek for

setting aside the sale namely, Order 21 Rule 90 CPC,

Section 47 CPC cannot be invoked. He would submit

that under proviso to sub-Rule (2) of Order 21 Rule 66

of CPC, Executing Court is not required to issue notice

to the judgment debtor if notice for settling the terms of

sale proclamation had been given to the judgment

debtor by means of an order under Rule 54 and in the

instant case an order of attachment having been passed

in the suit itself on 07.09.1993 question of issuing sale

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notice once again does not arise. He would also further

contend that even otherwise sale notice had been issued

to the Judgment Debtor as evidenced from the

summons found in the records of the Executing Court

and as such Judgment Debtor cannot now contend that

sale notice was not served on him. He would contend

that judgment debtor has not entered the witness box

and none of the allegations made in the affidavit

supporting the application came to be proved. But on

the other hand the evidence of the JDRW-1 dated

07.08.2009 would indicate that he was not personally

aware of the events narrated by judgment debtor in the

affidavit supporting the application and as such no

infirmity can be found in the order under challenge. In

support of his submissions he has relied upon following

Judgments:

(1) AIR 1981 SC 693 – S.A.Sundararajan Vs A.P.V.Rajendran

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(2) (1963) I MYS.LJ 448 – Nanjappa Vs Doddamuniswamy Gowda and anr

12. Sri.Ganapathi Hegde, learned counsel appearing

for auction purchaser would adopt the arguments

advanced by Sri.Chandan S. Rao with regard to merits

of the case, but would hasten to add that appeal in

question is not maintainable particularly after

amendment brought to Code of Civil Procedure by

Amendment Act 104 of 1976 and particularly the

definition of Section 2(2) defining the word “decree”

having undergone change. He would also contend that

Section 47 of CPC being general provision has to yield to

order 21 Rule 90 of C.P.C and when judgment debtor

pleads for auction sale being set aside application was

required to be filed under Order 21 Rule 90 CPC only

and not under Section 47 of C.P.C. In support of his

submissions he has relied upon the following

Judgments:

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(1) ILR 1994 KAR 145 –

Siddappa Vs Mariyappa

(2) AIR 1983 BOM 378 – Rameshkumar Swarupchand Sancheti and anr Vs Rameshwar Vallabhram Bhatwal and anr

13. In reply Sri.Aswathnarayan Reddy, learned

counsel appearing for appellant- Judgment Debtor

would contend that in the event of this court arriving at

a conclusion that appeal is not maintainable, appellant

be permitted to convert the present appeal to revision

petition namely as a revision petition filed under Section

115 of CPC and in support of said submission he has

relied upon Judgment of the Hon’ble Apex Court in the

case of THE RELIABLE WATER SUPPLY SERVICE OF

INDIA (P) LTD., VS THE UNION OF INDIA AND

OTHERS reported in AIR 1971 SC 2083.

14. Having heard the learned advocates appearing for

the parties and on perusal of the records this Court is of

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the considered view that following points would arise for

consideration:

(1) Whether auction sale conducted by

the Executing Court in selling the

immovable property belonging to

Judgment Debtor is liable to be set

aside on any ground whatsoever?

(2) Whether the appeal in question is

maintainable or not?

(3) What order?

15. Though answering question No.2 would have a

direct bearing on the merits of the case and in the

normal course this Court would have examined point

No.2 formulated hereinabove at first instance, such

course is not adopted, inasmuch as, learned advocates

have addressed arguments on merits of the claim in

extenso and learned counsel appearing for second

respondent in this appeal i.e., auction purchaser by way

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of his last limb of arguments has raised the issue of

maintainability of this appeal. Hence, this Court is of

the considered view that point No.1 deserves to be

adjudicated at the first instance dehors the issue of

maintainability of the appeal having been raised.

Hence, point No.1 formulated hereinabove is taken up

for consideration at the first instance and before

adjudicating point No.2.

RE: POINT NO.1:

16. In order to answer this point it would be necessary

to extract the chronological list of dates and events

which had unfolded before the Executing Court and

same reads as under:

SL. NO.

DATES EVENT

1. 06.09.1993 O.S.No.5422/1993 was filed.

2. 06.09.1993 An order was passed in O.S.No.5422/1993 attaching the Property (site No.452, in Kengeri Satellite Town Layout –

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Extension, Bangalore) of the appellant.

3. 06.11.1993 The appellant herein entered

appearance in O.S.No.5422/1993. The order of attachment was made absolute since the appellant failed to furnish security as directed by the Court.

4. 17.07.1998 Judgment and decree was passed in O.S.No.5422/1993 and the appellant herein was directed to pay a sum of Rs.1,70,000/- to the 1st respondent herein with interest at 24% per annum from 30.10.1990 till realization.

5. 10.02.1999 Execution Petition No.220/1999 was filed by the 1st respondent.

6. 24.08.2000 Notice for settling sale proclamation (Form No.28) was served on the appellant.

7. 11.12.2001 Sale Proclamation was issued (Form No.29)

8. 18.02.2002 Spot sale of the Property was conducted.

9. 07.03.2002 Court sale of the property was conducted.

10. 11.04.2002 The sale was confirmed in favour of the 2nd respondent-auction purchaser.

11. 11.11.2002 Sale certificate was issued in

favour of the 2nd respondent.

12. 05.02.2003 The appellant filed miscellaneous No.1115/2003 praying that the Judgment and decree in O.S.No.5422/1993 be set aside.

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13. 11.02.2003 The appellant filed an application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 praying that the

sale of the property be set aside.

14. 12.01.2009 Miscellaneous No.1115/2003 was dismissed.

15. 16.06.2012 The application filed under

Section 47 read with Section 151 of the Code of Civil Procedure, 1908 was dismissed and the execution petition was closed.

17. A perusal of the affidavit supporting the

application filed under Section 47 of CPC by the

judgment debtor would indicate that plea raised

thereunder was clearly omnibus or in other words

exhaustive and judgment debtor has sought for auction

sale conducted by the Executing Court being set aside.

Thus, grounds urged in the said affidavit will have to be

examined to find out as to whether such grounds would

fall within the domain of Order 21 Rule 90 of C.P.C or it

can be construed as one falling exclusively under

Section 47 of C.P.C. as sought to be made out by

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respondents since said application though styled as

having been filed under Section 47 CPC and in effect it

is to be treated as one having filed under Order 21 Rule

90 CPC inasmuch as, issue of limitation would arise for

consideration if it is held that application in question is

to be treated as one filed under Order 21 Rule 90 CPC.

18. Perusal of the application would indicate auction

sale conducted by the Executing Court is sought for

being set aside on the following grounds:

(1) The auction purchaser is none other than the husband of decree holder and they have colluded against each other

and purchased the property for a sum; (2) The Bank Manager where judgment

debtor has availed credit facility is best friend of auction purchaser and the decree holder;

(3) The decree holder and auction

purchaser had practiced fraud and thereby sold the property for low price;

(4) Executing Court has not served any

notice on judgment debtor before auctioning the property and as such,

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sale is void, illegal and contrary to law (vide paragraph 11 of the affidavit supporting the application);

(5) Auction suffers from material

irregularity and legal infirmities and is in contravention of Rule 128 of Karnataka Civil Rules of Practice. Hence, it is not a sale in the eye of law.

When the above plea put forward by the judgment

debtor is examined in the background of Rule 90 of

Order 21 CPC, it would not detain this Court too long to

arrive at a conclusion that application in question is

required to be considered as one filed under Order 21

Rule 90 CPC. A conjoined reading of the above

pleadings would indicate that the judgment debtor has

applied to the Court to set aside the sale on the ground

of material irregularity and fraud in publishing the sale

notice and sale proclamation and so also proceedings

relating to conducting of auction sale. It has been held

by the Hon’ble Apex Court in the case of

S.A.SUNDARARAJAN vs. A.P.V.RAJENDRAN reported

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in AIR 1981 SC 693 that mere irregularities such as

the error committed while conducting sale like not

drawing up the sale proclamation in accordance with

law, not showing certain payments, nor omission to

mention the tax paid or payable, would fall within Rule

90 and not under Section 47 CPC. Hence, it is held that

the application in question is to be treated as having

been filed under Order 21 Rule 90 CPC and it cannot be

construed as an application filed under Section 47 CPC

simplicitor.

19. A sale can be set aside by the Executing Court on

the ground of irregularity or fraud occurring in sale of a

property as contemplated under Order 21 Rule 90 of

CPC if such plea is put forward and proved. Article 127

of the Limitation Act, 1963 mandates that an

application to set aside a sale in execution of a decree

has to be filed within 60 days from the date of sale.

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Undisputedly in the instant case spot sale of the

property came to be conducted on 18.02.2002 and

Court sale came to be conducted on 07.03.2002 and

sale was confirmed in favour of auction purchaser on

11.04.2002. Sale certificate came to be issued in favour

of auction purchaser on 11.11.2002. JDRW-1 has

admitted in his evidence dated 07.03.2009 that sale

confirmation took place on 11.04.2002 and sale

certificate came to be issued in favour of auction

purchaser on 11.11.2002. It is also admitted by him

that they came to know about the auction of the

property on 18.12.2002 when he visited the BDA office.

His admission in the cross examination dated

07.03.2009 reads as under:

“My father is still xxx by my father. In this case an auction took place on 18.02.2002. The sale was confirmed by the court on 11.04.2002. Sale certificate was issued on 23.10.2002. The auction purchaser has deposited

Rs.4,00,000/-. The decree holder withdrew the said amount from the

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court. On 18th Dec. 2002, we came to know the auction of the property when we visited the BDA office. As on the day, the Khatha was already changed

to the auction purchaser”.

20. The above admission would clearly indicate that

the Judgment Debtor knew about the property in

question having been auctioned and the khatha of the

said property having been made over to the name of

auction purchaser. Having noticed this aspect the

Judgment Debtor filed a miscellaneous petition in Misc.

No.1115/2003 on 05.02.2003 which also came to be

dismissed on 12.01.2009. Even when Judgment Debtor

came to know about sale having taken place on

18.02.2002 he did not take steps as expected of a

person of reasonable prudence. Judgment debtor

though knew about auction sale having taken place on

18.02.2002 and its confirmation having been made on

11.04.2002 did not file application to set aside auction

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sale. However, application under Section 47 CPC came

to be filed only on 11.02.2003.

21. In the instant case the Judgment Debtor has not

entered the witness box. It is his son who has entered

the witness box and no reasons are forthcoming as to

why Judgment Debtor did not enter the witness box.

Factual aspects which are not within the knowledge of

the agent cannot be taken note of and any amount of

evidence tendered by an agent on behalf of the principal

which relates to factual aspects and which facts are not

within agents personal knowledge would only be hear

say evidence and much credence cannot be attached.

In the instant case records would indicate that JDRW.1

has tendered his evidence namely, Examination-in-

Chief by filing an affidavit dated 22.07.2000 and has

stated that Judgment Debtor had shifted to Delhi

during 1997 due to ill health of his father and in order

to take care of him, he shifted his transport business

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also to Delhi. However, in the cross-examination dated

28.02.2011 it is admitted by him that he has not

produced any documents to substantiate his statement

made in paragraphs 6 and 7 of his affidavit. This would

only indicate that plea raised by Judgment Debtor has

remained as a plea without proof. Hence, it has to be

held that the application in question having not been

filed within 60 days from the date of sale (11.04.2002 –

date of confirmation of sale in favour of second

respondent – auction purchaser) as required under

Article 127 of the Limitation Act, 1963, said application

was liable to be dismissed on the ground of limitation

and finding has been rightly recorded by the Executing

Court to the said effect.

22. Yet another contention which came to be raised by

the Judgment Debtor in the present proceedings relates

to non issuance of notice as required under sub-rule (2)

of Rule 66 of Order 21 CPC to him before sale

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proclamation. In order to examine said plea, it would be

necessary to extract Order 21 Rule 66 CPC and it reads

as under:

“66. Proclamation of sales by public auction.-(1) Whether any property is ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-

holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-

(a) the property to be sold (or,

where a part of the property would be sufficient to satisfy the decree, such part);

(b) the revenue assessed upon

the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

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(c) any encumbrance to which the property is liable;

(d) the amount for the recovery

of which the sale is ordered; and

(e) every other thing which the

Court considers material for a purchaser to know in order to judge of the nature and value of the property:

[Provided that where notice of the

date for settling the terms of the proclamation has been given to the

judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.

(3) Every application for an order for sale under this rule shall be accompanied by a statement signed

and verified in the manner hereinbefore prescribed for the signing

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and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters

required by sub-rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.”

23. Perusal of sub-rule (1) would indicate that where a

property is ordered to be sold by public auction in

execution of a decree, Executing Court should cause

proclamation of the intended sale to be made in the

language of the Court and under sub-rule (2) such

proclamation will be drawn up by the Executing Court

after notice to the decree holder and judgment debtor

indicating thereunder time, place of sale and details

enumerated in clauses (a) to (e) of sub-rule (2).

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However, exception for non issuance of notice to

Judgment Debtor is when the notice of the date for

settling the terms of the proclamation has been already

given to such judgment debtor by means of order under

Rule 54 of Order 21 CPC and in such circumstances, it

shall not be necessary for the Executing Court to give

notice under this Rule to the judgment debtor, unless

the Executing Court otherwise directs. The Hon’ble

Apex Court in the case of M/S. MAHAKAL

AUTOMOBILES AND ANOTHER vs KISHAN SWAROOP

SHARMA reported in AIR 2008 SC 2061 has held that

it is mandatory to issue notice to the judgment debtor at

each stage. It has been held by the Hon’ble Apex

Court as under:

“6. When a property is put up for auction to satisfy a decree of the Court, it is mandatory for the Court executing the Decree, to comply with the following stages before a property is sold in execution of a particular decree:

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(a) Attachment of the Immoveable Property:

(b) Proclamation of Sale by Public Auction;

(c) Sale by Public Auction

7. Each stage of the sale is governed by the provisions of the Code. For the purposes of the present case, the relevant provisions are Order 21 Rule 54 and Order 21 Rule 66. At each stage of the execution of the decree, when a property is sold, it is mandatory that notice shall be served upon the person

whose property is being sold in execution of the decree, and any property which is sold, without notice to the person whose property is being sold is a nullity, and all actions pursuant thereto are liable to be struck down/quashed.

8. The admitted position that has emerged is that:

(i) There was no notice served upon the Judgment-Debtor

under Order 21, Rule 54 (1-A).

(ii) There was no valuation of the property carried out;

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(iii) There was no proclamation

of sale as per the statutory provisions of the M.P. Civil Court Rules, 1961 read with Order 21, Rule 66.

(iv) There was no publication of the sale.”

24. The Hon’ble Apex Court has held in the case of

DESH BANDHU GUPTA vs N.L.ANAND AND ANOTHER

reported in 1993 AIR SCW 3458 that service of notice

on judgment debtor of proposed sale of his property is

mandatory and omission to serve the notice is nullity.

It has been held by the Hon’ble Apex Court as under:

“9. However, there is considerable force in the contention of the appellant that the procedure prescribed under Order 21, Rule 66 was flagrantly violated by the Executing Court. We have already noted the order of the Court to conduct the sale. For judging its legality and validity, it would be desirable to have a bird's eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21, Rule 5 the Court shall ascertain the compliance of the pre-

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requisites contemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order thereon to issue notice under

Rule 22, subject to the conditions specified therein. If a notice was served on the judgment-debtor as enjoined under Order 5 but he did not appear or had not shown cause to the satisfaction of the Court, under Rule 23 the Court "shall order the decree to be executed". If an objection is raised to the execution of the decree, by operation of sub-rule (2) thereof, "the Court shall consider such objections and make such order as it thinks fit".

Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting the judgment-debtor from transferring or creating encumbrances on the

property. Under Rule 64 the Court may order sale of the said property. Under Rule 66(2) proclamation of sale by public auction shall be drawn up in the language of the Court and it should be done after notice to the decree-holder and the judgment- debtor and should state "the time and place of sale" and "specified as fairly and accurately as possible" the details specified in Clauses (a) to (d) of sub-rule (2) thereof. The Civil Rules of Practice in

Part L in the Chapter 12 framed by the High Court of Delhi 'Sale of Property

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and Delivery to the Purchaser' Rule 2 provides that whenever a Court makes an order for the sale of any attached property under Order 21, Rule 64, it

shall fix a convenient date not being distant more than 15 days, for ascertaining the particulars specified in Order 21, Rule 66(2) and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders. In Rule 4 captioned 'Settlement of Proclamation of Sale, Estimate of Value' it is stated that on the day so fixed, the Court shall, after perusing the document, if any AND the report referred to in the preceding

paragraph, after examining the decree-holder and judgment-debtor, if present, AND after making such further enquiry as it may consider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the

matters required by Order 21, Rule 66(2) of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and noted with care. This will remove the basis for many a belated objections to the sale at a later date. It is not necessary to give in any proclamation of sale the estimate of the value of the property. The proclamation when

settled shall be signed by the Judge and get it published in manner

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prescribed by Rule 67. The Court should authorise its officers to conduct the sale. Under Rule 68 the sale should be conducted at "the place and time"

specified or the time may be modified with the consent in writing of the judgment-debtor. The proclamation should include the estimate, if any, given by either judgment- debtor or decree-holder or both the parties. Service of notice on judgment-debtor under Order 21; Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the Court in execution. Judgment- debtor should have an

opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending

bidders are not misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratan, (1974) 1 SCR 372: (AIR 1973 SC 2593), this Court, after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the Court, when stating the

estimated value of the property to be sold, must not accept merely the ipse

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dixit of one side. It is certainly not necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of

something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the Court's estimate is erroneous. Moreover, Rule 66(2)(e) requires the Court to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the

property and which could assist the purchaser in forming his own opinion must be stated, i.e., the value of the property, that is, after all, the whole object of Order 21, Rule 66(2)(e), CPC. The Court has only to decide what are

all these material particulars in each case. We think that this is an obligation imposed by Rule 66(2)(e). In discharging it, the Court should normally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued property AND it does not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised,

which could reasonably and usefully be stated succinctly in a sale

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proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question. It could also be

angulated from another perspective. Sub-rule (1) of Rule 66 enjoins the Court that the details enumerated in sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and gives opportunity in the settlement of the value of the property. The absence of notice causes irremediable injury to the judgment-debtor. Equally

publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to

offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment-debtor disables him to offer his estimate of the value who is better knows its value and to publicise on his part canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the

publication and conduct of sale or other material irregularities in the

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conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and

interest of the judgment-debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment-debtor or the decree- holder. A sale made, therefore, without notice to the judgment-debtor is a nullity since it divests the judgment- debtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a Court only where the owner

is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his

estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopala Iyer vs. Ramachandra Iyer. ILR 47 Mad 288: (AIR 1924 Madras 431), the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.

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10. Above discussion do indicate

discernible rule that service of notice on the judgment-debtor is a fundamental part of the procedure

touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21, Rule 66(2), unless proviso is applied (if not already issued under Order 21, Rule 22) AND service is mandatory. It is made manifest by Order 21, Rule 54 (1A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation of sale. The

omission thereof renders the further action and the sale in pursuance thereof void unless the judgment-debtor appears without notice and thereby waives the service of notice.”

25. There cannot be any dispute with regard to the

proposition that if there is non issuance of notice as

required under Order 21 Rule 66(2) sale conducted

pursuant to such sale proclamation would render the

proceedings void. In this background it requires to be

examined as to whether notice had been issued to the

judgment debtor before drawing up of sale proclamation

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or not. Appendix E to Code of Civil Procedure, 1908

would indicate that Executing Court is required to

issue notice in Form No.28 to a judgment debtor

informing him of the date which has been fixed for

settling the terms of proclamation of sale. Perusal of

the original records would indicate that notice in Form

No.28 has been issued by the Executing Court to the

judgment debtor which is available at page 278 of the

records and as could be seen from reverse side of the

said notice, judgment debtor has affixed his signature

after receiving the same on 24.08.2000 which has not

been expressly denied by the judgment debtor in any

proceedings.

26. Order sheet of the Executing Court would indicate

that on 18.02.2000 sale notice was ordered to be issued

to the judgment debtor. On 24.07.2000 fresh notice

came to be ordered on the judgment debtor and it was

ordered to be listed on 30.09.2000. On the said date,

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Registry of the Executing Court has made a note to the

following effect:

“sale notice to Jdr issued returned served on person”

After having noticed the said note made by the Registry,

the Executing Court has recorded as under:

“Jdr called out. Absent. Service of sale notice is sufficient. Office to verify the sale papers ….”

The above note made by the Executing Court would

clearly indicate that notice has been issued to the

judgment debtor before drawing up of the sale

proclamation and same is duly served on judgment

debtor as could be seen from the summons available in

record, which is duly returned by the bailiff and same is

available at page 278 of Executing Court records. In

other words, there is due compliance of Order 21 Rule

66(2) of CPC and there is no infraction of the said rule

so as to arrive at a conclusion that for want of issuance

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of such notice, sale proceedings is vitiated. Hence,

point No.(1) is answered in the negative namely, against

appellant and in favour of respondents.

RE: POINT NO.(2):

27. If the application though filed to set aside the sale

on the ground of fraud and irregularity is to be

construed as one having been filed under Section 47

CPC, then, necessarily it has to be held that the

present appeal as not being maintainable for the

following reasons.

Order under Section 47 CPC to be treated as a

decree must have decided rights of the parties with

regard to the matter in controversy in the proceedings

under said Section. For this proposition, judgment of

Hon’ble Apex Court in AIR 1967 SC 1344

(Ramchandra SPG. & WVG. Mills vs. Bijli Cotton

Mills & others) can be looked up.

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28. Section 2(2) CPC defines “decree” to mean formal

expression of adjudication on the rights of the parties

with regard to all or any of the matters in controversy.

In other words, decree must be the result of

adjudication or it must determine rights of the parties

conclusively and finally.

29. All questions arising between the parties to the

suit in which decree was passed have to be determined

by the Court executing the decree as per Section 47

CPC.

30. When sale of immovable property in execution of a

decree whose validity is not questioned, is attacked as

illegal and void, it would be a question under Section 47

CPC which has to be determined by the Executing Court

itself. For this proposition, AIR 1967 SC 1344 can be

looked up.

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31. Hence, definition of “decree” and the statutory

provision which had been invoked by the appellant

before the Executing Court will have to be noticed.

Hence, Section 2(2) and Section 47 CPC are extracted

herein below:

“2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,-

(1) xxx (2) “decree” means the formal

expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in

controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an

appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

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Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

“47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) omitted

(3) xxx

32. Perusal of Section 2(2) of CPC would indicate that

by Act No.104/1976 it came to be amended with effect

from 01.02.1977. The words “Section 47 or” after the

words “determination of any question within” and before

the words “Section 144” came to be omitted. Thus, it

would clearly indicate, prior to amendment, order

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passed under Section 47 of CPC by the Executing Court

was falling within the definition of a ‘decree’ as defined

under Section 2(2) CPC and as such, this Court as well

as Hon’ble Apex Court has consistently held that an

appeal would lie against such an order. However, by

virtue of amendment brought to Section 2(2) by

amending Act 104/1976 and “Section 47” having been

omitted from the definition clause of Section 2(2) CPC, it

cannot be held that such an order would partake the

character of a decree so as to cloth this Court to

entertain an appeal against an order passed under

Section 47 by the Executing Court.

33. A co-ordinate Bench of this Court in the case of

H.VEERAPPA vs CHANNABASAPPA LAKSHMESHWAR

reported in ILR 1982(2) KAR. SHORT NOTES 56) has

held that by virtue of amendment to CPC namely,

Section 47 CPC having been omitted from the definition

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of “decree”, appeal would not be maintainable and

revision is competent.

34. A co-ordinate Bench of this Court in the case of

BASAPPA vs H.K.SATYANARAYA SETTY reported in

ILR 1978(2) KAR. 1712 has held that omission of

Section 47 in Section 2(2) CPC has resulted in such

orders being held as not amenable to appellate

jurisdiction. In that view of the matter, it has to be held

that present Execution First Appeal would not be

maintainable.

35. Thus, viewed from any angle, there is no merit in

this appeal and same is liable to be dismissed both on

merits and on the ground of appeal not being

maintainable.

36. For the reasons stated herein above, I proceed to

pass the following:

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ORDER

(1) Execution First Appeal is hereby dismissed.

(2) Order dated 16.06.2012 passed in

Ex.No.220/1999 by the 5th Addl.City Civil

Judge, Bangalore dismissing the application

filed by the judgment debtor under Section

47 CPC r/w Section 151 CPC is hereby

affirmed.

(3) Costs made easy.

Sd/- JUDGE

SBN/sp